May 29, 2007

Ledbetter Will Lead to Worse

by PG

I can see a good conservative reason to be unhappy with this decision -- it creates a motive for women to file suit as soon as they suspect even the tiniest bit of discrimination, because they're afraid to miss the 180-day window. This rush to litigation will increase the burden on the EEOC and the courts tremendously. Many people have had moments in the workplace where they wonder if they're being discriminated against, and later are reassured that a non-malicious error occurred, or find out the non-invidious reason they were treated differently. With Ledbetter, the employee who casually mentions to a lawyerly acquaintance, "Hey, you know anything about employment law? I started working five months ago, and today I found out that my paycheck's less than the guy I started with -- do you think maybe they're paying me less because I'm a woman?" will be told that while the attorney cannot evaluate the claim, he can say that the window for filing it is nearly closed.

Ginsburg doesn't make that specific point in her dissent. However, she does note, "Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves. ... Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex." On the other hand, I suppose reducing the readiness to give the employer the benefit of the doubt will provide those displeased by the existence of remedies against discrimination with useful statistics on the number of complaints that come to naught. A short period in which to complain, that pressures employees to cry before they are themselves certain as to whether it's a wolf, may have some long-run usefulness in allowing a conservative politician to call for raising the barriers to filing with the EEOC.

I need to re-read the facts alleged by the plaintiff to be sure, but the majority's dismissal of Bazemore as precedent to validate Ledbetter's claims seems ludicrous. From the synopsis:

Bazemore v. Friday, 478 U. S. 385 (per curiam), which concerned a disparate-treatment pay claim, is entirely consistent with Evans, Ricks, Lorance, and Morgan. Bazemore’s rule is that an employer violates Title VII and triggers a new EEOC charging period whenever the employer issues paychecks using a discriminatory pay structure. It is not, as Ledbetter contends, a “paycheck accrual rule” under which each paycheck, even if not accompanied by discriminatory intent, triggers a new EEOC charging period during which the complainant may properly challenge any prior discriminatory conduct that impacted that paycheck’s amount, no matter how long ago the discrimination occurred. Because Ledbetter has not adduced evidence that Goodyear initially adopted its performance-based pay system in order to discriminate based on sex or that it later applied this system to her within the charging period with discriminatory animus, Bazemore is of no help to her.

If the folks at Goodyear knew that Ledbetter was getting paid less than her male peers -- indeed, sometimes below the minimum required for a person in her position -- and never bothered to review her compensation, this seems to be part of the pay structure itself. The problem is that as mental state goes, the failure to review despite knowledge of dispairty is more like discriminatory negligence or recklessness than intent. However, Ledbetter does seem to have some evidence that the system was applied, neglecting to correct her salary, with discriminatory animus, inasmuch as many of her supervisors expressed sex discriminatory thoughts and quite likely were motivated by such animus in their disregard for whether she was being paid fairly under this pay system or not. Surely if a system, itself unbiased, is administered by people with discriminatory animus who are happy to keep a prior instance of discrimination rolling until it snowballs into a massive pay disparity, the system and its administration have had a discriminatory effect on the employee. Look at Bazemore:

The Court of Appeals' conclusion that pre-Act salary discrimination did not have to be eliminated undermines the rest of its analysis of the District Court opinion. Having rejected the effect of pre-Act discrimination, the court considered solely whether the Extension Service discriminated with respect to the application of quartile rankings which, according to the Court of Appeals, were "the only aspect of salary computation in which the Extension Service exercised any discretion." 751 F.2d, at 674.[Footnote 7] Because, as we have explained, the Extension Service was under an obligation to eradicate salary disparities based on race that began prior to the effective date of Title VII,[Footnote 8] the Court of Appeals erred in concentrating its analysis solely on the issue whether there was racial discrimination in the ranking system.

Footnote 7. Quartile ranking refers to the practice of the Extension Service of placing each agent in the first, second, third, or fourth quartile, according to his or her performance for the previous period. These rankings influence salary decisions.

Footnote 8. This lawsuit involves two distinct types of salary claims: those of employees subject to the premerger discriminatory pay structure and those hired after the merger of the black and white branches. If the acknowledged pre-1965 disparities continued for employees employed prior to 1965, then respondents violated the law. But for employees covered by this suit who were never employed under the dual system, it is meaningless to say that the pre-1965 disparity "continued" past 1972, absent (1) evidence that new disparities were created or begun after the merger that continued past 1972, or (2) evidence that new disparities were created after 1972. See Brief for Plaintiffs-Appellants Bazemore et al. in Nos. 82-1873(L), 82-1881, 82-1927, 82-2065 (CA4), pp. 24-41.

I don't know the facts of Bazemore beyond what's in the Supreme Court decision, but my understanding is that the plaintiffs failed to prove discrimination in the application of the quartile ranking system itself, whereas the discrimination originating in the separate white and black branches of the agency was pretty much indisputable. Therefore the disparity that the Court said required correction was due to past active discrimination, and the failure to correct it was passive acquiesence to that discrimination. This seems to me basically what's happening with Ledbetter.

If the problem in Bazemore, as the majority opinion notes, was “[t]he continued use of a racially explicit base wage,” aside from being based on race instead of sex, and being explicit instead of unnamed, how is this different from Ledbetter? For a lengthy period of time, her wages were kept lower than her male peers', and a jury found that this was due to sex discrimination. The resulting lower wage was her "base wage" at the time her supervisors stopped giving her lower performance evaluations -- resulting in lower raises -- because of her sex. That a subsequent supervisor evaluated her fairly and gave her a percentage increase in her base wage, which percentage increase was not biased by discriminatory animus, does not change the fact that her base wage was the result of discrimination, just as the Bazemore plaintiffs' wages were.

I just cannot figure out why, if the Extension Service was under an affirmative obligation to erase wage differences created by prior bad acts, Goodyear was not under a similar obligation to do the same.